The appeal to the Supreme CourtMontgomery_C_7_4_145779_rt

The decision throws into sharp relief questions about  the effectiveness of judicial review in criminal causes or matters where PII is claimed. The traditional justification for limiting access in criminal causes or matters from the scrutiny of the Administrative Courts (in the case of matters relating to trial on indictment) and the Court of Appeal (Civil Division) (in the case of appeals from the Administrative Court) has been the proposition that the rights of the subject can be protected in the criminal courts. However the flaw in this argument is that there is no power in the criminal courts (whether on a review of the section 8 warrant or on an application under section 59) to quash a warrant or to make any declaration as to the legality of the search or seizure under the warrant. Hargreaves v Powys County Council Trading Standards Department [2015] EWHC 1803 (Admin) confirms that neither the powers of the criminal courts under section 78 of PACE nor the powers of the court under section 59 are a suitable alternative remedy. This is the starting point for the Appellants fundamental claim, in reliance on Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452, that there must be an irreducible minimum disclosure to permit an effective remedy by way of judicial review of search warrants.

The appeal also raises the use of PII in this case. In most instances in criminal cases PII is claimed in respect of unused material so as to prevent material being scrutinised by the court and relied on by litigants. It thus prevents consideration of material so that, in the normal course, it plays no part in the substantive decision making in the judicial process. In JHs case, by contrast, the PII material is the decisive material that justifies the orders for the warrants and for the retention of the material. This is therefore a stark example of secret justice. The police response acknowledges this. It is contended that this is justified by balancing the competing rights.

The Supreme Court may consider that the key to the case lies in the identification of the relative weight of the personal rights in play (privacy and personal autonomy in contrast to rights of liberty or life). The principal argument for the police is to adopt the approach of Cranston J in treating the common law right to information and the decision in Al-Rawi’s case as applicable only in relation to more important rights.

Even if the Supreme Court considers that the procedure was lawful, questions will arise as to the justification for excluding criminal cases from the procedural protections available in a CMP under the Justice and Security Act 2013, s 6.  The police response to this apparent gap is to suggest that the Administrative Court may hold a closed PII hearing.  However this is not a procedure expressly authorized by statute (see Al-Rawi’s case) and unless this hearing is structured to include the procedural protections available in the CMP it is hard to see any justification for the distinction between civil and criminal judicial review.

Please see Part One here.